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|01-01-2016, 12:23 AM||#1|
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ECU Programming Rights: Who Really Owns Your Bike?
Even if motorcycle manufacturers never decide to take legal action for copyright infringement relative to their ECU programming, there are other serious ramifications.
So you think you own your bike? Maybe. Maybe not. And we’re not talking about loan payments and pink slips here. This is about who owns the software loaded into the many computers on your modern motorcycle in charge of your engine, instruments, and brakes. And it might not be you.
In recent years, manufacturers have built legal cases to argue that consumers do not own the copyrighted software in the products they buy—programming that is essential to making modern products operate. Specifically, you should not be allowed to touch the programming without falling on the wrong side of the law: the Digital Millennium Copyright Act, or DMCA. These companies maintain that cracking this programming opens the door to lawsuits—and many have indeed sent armies of lawyers into courtrooms over this matter.
In April 2015, Kyle Wiens, the co-founder and CEO of iFixit, wrote an article for WIRED.com entitled “We Can’t Let John Deere Destroy the Very Idea of Ownership.” In this article, Wiens declares, “It’s official: John Deere and General Motors want to eviscerate the notion of ownership. Sure, we pay for their vehicles. But we don’t own them. Not according to their corporate lawyers, anyway.
“In a particularly spectacular display of corporate delusion, John Deere—the world’s largest agricultural machinery maker—told the Copyright Office that farmers don’t own their tractors. Because computer code snakes through the DNA of modern tractors, farmers receive ‘an implied license for the life of the vehicle to operate the vehicle.’
“It’s John Deere’s tractor, folks. You’re just driving it.”
If that sounds like crazy-man talk, consider this: Within days, the John Deere corporate office sent letters to its dealers to try to defuse the situation. It says, in part, “Similar to a car or computer, ownership of equipment does not include the right to copy, modify or distribute software that is embedded in that equipment.”
So there you have it. John Deere is applying its corporate muscle to ensure consumers can’t access the programming in their tractors because it’s copyrighted and it belongs to John Deere, not the purchaser. Other corporations, including trade groups lobbying on behalf of many automakers, have worked tirelessly to make the case to the US Copyright Office that customers who do so infringe on copyrighted programs. In short, they want to lock up this technology.
How did we get here? In 1998, the US Senate unanimously passed the DMCA to extend the reach of copyright law. Much of its intent was to address the special challenges of regulating digital material over the Internet. In this electronic era, access to and copying of a copyrighted work had become easier than ever. To prevent such actions, the DMCA includes language that forbids “anti-circumvention” provisions aimed at stopping copyright pirates from disabling Digital Right Management (DRM) software—embedded code that prevents simple and convenient copying or modification of such files.
American copyright law also entitles the general public to use copyrighted works without securing permission, in ways that don’t interfere with the copyright owner’s market for a work: the principle of “fair use.” This typically covers personal, noncommercial uses. But because of the inherent opposing interests surrounding fair use, conflicts will arise—in our case, is this my bike or your computer programming? In broad terms, the DMCA is supposed to protect the rights of both copyright owners and consumers. But there’s no clear-cut dividing point.
Since the 1990s, the number of products incorporating computer software has exploded in scope and breadth, and many believe the DMCA has been deliberately twisted to kill off innovation and competition, rather than to stop piracy. One such group is the Electronic Frontier Foundation, an organization focused on “defending civil liberties in the digital world.” They point out that the DMCA has been used to block aftermarket competition in laser-printer toner cartridges, garage-door openers, videogame-console accessories, and much more. They claim, “Until EFF obtained an exemption for jailbreaking, Apple relied on the DMCA to lock iPhone owners into purchasing software exclusively from Apple’s own App Store.”
The EFF also points out that access to today’s digital content is often restricted by digital locks or blocks, but the DMCA prohibits the creation or distribution of tools to defeat such blocks—even if they are needed to enable fair use and whether or not there is actual infringement of copyright itself. Fair users can be found liable for “picking the lock,” whatever the merits of their fair-use defense. Copyright owners argue that these lock-breaking tools, in the hands of copyright infringers, can result in “Internet piracy.”
Let’s state that more clearly: If you defeat DRM locks for your personal fair use or create the tools to do so, you might be on the receiving end of a lawsuit. And that’s very important in our case because virtually all motorcycle manufacturers now place locks within ECU programming. In talking with a well-known race tuner/speed shop owner (who wishes to remain anonymous), some locks are easy to defeat and some are harder to work around, but his company is in the business of unlocking such blocks in order to improve motorcycle performance, per customer directives.
He said, “Manufacturers select ECU settings that have to meet a number of criteria: allowing the bike to run to its design capacity, enhance product longevity, meet emissions criteria, and more. All that can definitely compromise a bike’s performance. And the newer bikes incorporate all kinds of functions, such as traction control and electronic suspension that make the electronics suite more and more complex. So maybe the average owner shouldn’t have easy access to mess with the coding. But it’s also about corporate control and the manufacturer wanting to monopolize their own system. So customers have to go back into their dealer network for servicing and thereby guarantee profits within their own company structure.
“We do lots of re-flashing (reprogramming) of stock ECUs. We also install and program aftermarket units. I write fully customized maps for fuel injection, ignition controls, and more for racebikes and other applications. So, essentially, we are computer programmers paid to write programs that make the bikes run better.”
With that thought, we asked whether he views his programming as proprietary intellectual property for single-use application to the purchaser alone. He said, “My take is that customers pay for the programming I create. It’s not leased to them; they own it. So they can copy it, modify it, or do whatever they want to do to it after it leaves my hands. I’m not thrilled with the idea of someone stealing my programming ideas and giving it to other people. But once an item goes into the market you no longer have proprietary rights. It’s theirs, and they can tear it apart, try to improve it, or whatever. In the real world, that’s called R&D, and it’s been going on for 100 years.”
Of course, that’s only one man’s view in a sport that tends to abide by big-boy rules. The legal arena is something else again, but there was some foresight attached to establishment of the DMCA that allows for change. As part of the statute, the DMCA undergoes review every three years. During this process, it can create explicit exemptions. For example, previous reviews addressed cell phone unlocking or “jailbreaking,” and regulations were rewritten to require all nationwide mobile service providers to unlock cell phones for owners when changing providers, whereas before it was illegal to unlock your own phone.
This is the world we live in. There’s no returning to breaker-point ignitions and carburetors. Electronic brains in our motorcycles are here to stay, and their use will only grow more common and become more complex with every round of new-model introductions. The jury is still out on who owns the rights to the electronic programming contained within your motorcycle’s ECU.
The warranty on your brand-new bike may be declared null and void if you modify your bike, including software programming.
ECU and Warranty
Even if motorcycle manufacturers never decide to take legal action for copyright infringement relative to their ECU programming, there are other serious ramifications. The warranty on your brand-new bike may be declared null and void if you modify your bike, including software programming. And don’t think that a dealership or company reps can’t trace such changes; the ECU automatically records all alterations, so removing your mods prior to lodging a warranty claim just won’t cut it, though we know from the Magnusson-Moss protections that the denying manufacturer will have to prove the modifications caused or contributed to the failure in the first place. Now you know.
It’s Also About “Smog”
Stricter governmental regulation of motorcycle exhaust emissions is likely just around the corner. The Federal Clean Air Act, and California’s Air Resources Board (CARB), have been squeezing down emissions standards for decades. California already holds a stricter standard for exhaust emissions that requires special modifications for many new-model motorcycles, and CARB is also taking a more active role in identifying and laying huge fines on motorcycle dealerships that perform modifications that increase emissions. It’s very possible that one day your motorcycle’s recorded ECU data could be used against you if you’ve modified your software to boost power at the cost of heightened emissions.
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